The Atlantic Magazine, April 2005
The Senate will soon need to gear up to hold confirmation proceedings for a new chief justice of the United States. Any advice for the Judiciary Committee?
Oh, just skip them. Unless President Bush commits an act of true statesmanship in nominating the next head of the federal judiciary, the confirmation process is going to be an ugly spectacle. Democrats will wax indignant about a “rollback” of the hard-won gains of the civil-rights movement—indeed, of our fundamental rights more generally. Republicans will whip themselves into a frenzy over the impropriety of opposing nominees because of their “ideology.” Some poor nominee will have his or her name dragged through the mud. If the Democrats successfully filibuster, we may have to repeat the whole process with another candidate. And after all the fuss, Bush will get what he wants anyway: a conservative chief justice. Why don’t we dispense with the song and dance?
Are you serious?
Almost. The Constitution requires that the Senate offer advice and consent on nominees, so there has to be some advising and consenting. And the Senate acts as a potentially important check on presidential power. The trouble is that there’s no reason to be confident that the probing will prove valuable. In fact, looking back at the six most recent chief justices, one is struck by how little light the Senate proceedings shed, either on the sort of justices they would be or on the defining issues they would face. The Senate never gets it right.
That’s a bold claim. How do you justify it?
Start, for example, with Charles Evans Hughes, whom Herbert Hoover named chief justice in 1930. Hughes had been a justice before, but had stepped down in 1916 to run for president against Woodrow Wilson. And he had spent the intervening years as, among other things, the country’s leading advocate before the Supreme Court, representing big business during an era of great (and now discredited) judicial solicitude for its interests. Hughes was undeniably well qualified for the job, but his nomination became the focus of an intense, and very modern-seeming, ideological dispute. Progressives of both parties opposed his nomination, because they did not want to strengthen the conservative majority on the Court or to bolster its enthusiasm for expanding property rights and restraining government regulation. As William E. Borah, a Republican from Idaho, put it on the Senate floor, opponents objected to “placing upon the court as Chief Justice one whose views are known upon these vital and important questions and whose views, in my opinion, however sincerely entertained, are not views which ought to be incorporated in and made a permanent part of our legal and economic system.”
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